NATIONAL INSURANCE CO. LTD Vs. PRABHU DEVI

JUDGEMENT

(1.) THIS appeal Under Sec. 173 of the Motor Vehicles Act, 1988 has been filed against the judgment and award dt. 22.05.2002 passed by Judge, MACT, Tonk in Claim Case No. 440/2001 (6/95) whereby the Insurance Company has been held liable to pay the compensation. The short facts giving rise to this appeal are that on 09.09.1994, deceased Kanhaiyalal was going on road to call Veterinary Doctor at about 10.00 P.M., Truck No. RSL 2631 came and hit him and he died due to the accident. FIR No. 119/94 was lodged. The claimants preferred a claim petition was allowed hence this appeal.

(2.) THE contention of the appellant is that impugned vehicle has been falsely involved in the accident, in FIR it has been specifically narrated that the accident has occurred by unknown vehicle and impugned vehicle has been falsely involved afterward by way of application Ex. 4 two eye -witnesses have been stated out of which Kalyan had not been examined and Bhairu Singh has stated specifically in his cross -examination that he has not seen the number of the Truck, hence involvement of the vehicle was not proved before the Court below. Further contention of the Insurance Company is that the driver of the involved vehicle was not having a valid license, hence a liberty to recover the amount be allowed to it, income has been unnecessarily assessed on higher side, loss of income should be assessed after taking actual income, hence the compensation should be reduced appropriately.

(3.) THE first contention of the appellant Insurance Company is that the impugned vehicle was not involved in the accident and it has been falsely involved. It is not in dispute that Prabhu Devi is not the eye -witness so also Kalyan -AW/3. In FIR number of the vehicle has not been mentioned. Admittedly, the accident has occurred on 09.09.1994 and present vehicle has been involved by way of application Ex. 4 which has been presented to the Investigating Officer on 02.11.1994 about 2 months after the accident in which it has been stated that Kalyan and Bhairu Singh are the eye -witnesses. As already mentioned Kalyan has not been produced and Bhairu Singh has been examined as AW/2 but in cross -examination he has categorically stated that he could not say that which Truck has hit the deceased and admittedly, he had not reported the matter to the police. Ex. 4 has been lodged by Ratan Lal. Nothing has been explained that how Ratan Lal came to know about the fact that Kalyan and Bhairu Singh are the eye -witnesses of the accident. On the same day i.e. 02.11.1994 on which Ex. 4 has been presented, the vehicle has been seized and that too has been produced by the owner of the vehicle himself at Police Station and he has also admitted the fact of accident which also caste a suspicion on the veracity of the evidence of the claimants, hence in view of the fact that basis of Ex. 4 is missing and Bhairu Singh could not identify the involved vehicle, the involvement of the impugned vehicle was doubtful and findings to this effect on Issue No. 1 are perverse and liable to be set aside and it can safely be concluded that involvement of the impugned vehicle was not proved by the claimants.